Investigation of Outspoken Bloggers Raises Legal Questions

Jeff Pataky, who runs the blog Bad Phoenix Cops, had his home searched by police in March of this year. Pataky believes the search warrant was issued because the police department is fed up with his criticism of them. He “works with four or five people who receive tips from a variety of sources, including sworn and retired officers.”

Pataky was accused of harassment by his ex-wife in 2007, and believes he was then “maliciously prosecuted by police,” though the case was later dropped.

The police department has said the search warrant stems from a Phoenix detective’s claims of harassment and that Pataky’s blog is just one part of the case.

In 2008, a Florida blogger critical of Jacksonsville pastor Mac Brunson was “unmasked” by a city police detective who also works for the pastor’s security detail. The blogger, Thomas A. Rich, had his identity revealed after a State Attorney’s Office subpoena, ordered by Detective Robert Hinson, required Google Inc. to reveal it, the Florida Times-Union reported.

Rich and his wife have been banned from the church, “despite the fact that Brunson and a top church administrator conceded the blog never threatened violence.”

Rich’s blog is one of three that have been investigated in connection with other critical behavior targeted at area pastors. However, Rich’s was explored in connection with reports of mail stolen from the Brunson home and photographs of Brunson’s wife that were taken “surreptitiously.”

Organizations including the Electronic Frontier Foundation seek to inform and, where possible, protect U.S. bloggers under laws including anti-SLAPP (Strategic Lawsuit Against Public Participation) laws, which vary from state to state. EFF explains, “If you are sued because you wrote about an issue of public interest or concern, you may have been SLAPPed.”

In its “Legal Liability Overview” for bloggers, the EFF also mentions Section 230 of Title 47 of the United States Code, which gives Web hosts “protection against legal claims arising from hosting information written by third parties.”

Section 230 may or may not protect bloggers like Jeff Pataky. It could protect him if the tips, comments and other information he is provided are considered from “third parties.” But the courts have not ruled on whether selecting information yourself or “actively going out and gathering data on your own” would shield a blogger under Section 230.

“There is no question the Internet and blogging are the new frontier in free speech law,” said First Amendment scholar Rodney A. Smolla in reference to a complex 2008 free speech case involving Rhode Island blogger Anne Grant. “[T]he kind of statement that used to be made in backyard gossip or around the water cooler can now be spread around the world,” he told The Providence Journal.

Under a little-invoked telecommunications law, South Korean blogger Park Dae-Sung, known to many as the “Internet president of the economy” and an “online oracle” for his ability to predict recent financial events, was arrested in January. Park was also a critic of the government’s policies. The government is holding Park responsible for a $2 billion foreign-currency loss. Deemed by authorities to be a threat to society and to be spreading false rumors, Park is being held in a South Korean cell after being denied bail, awaiting trial under the telecommunications law that could see him imprisoned for up to five years.

Thirty-six bloggers were arrested in 2007, reported The Guardian, which cited researchers at the University of Washington. That figure was “an increase of more than three times on the figures from 2006.” Assistant professor Phil Howard said that figure was probably an underestimate “since many arrests in China, Zimbabwe and Iran go unreported in the international media.”

According to the data, “the most common transgression involves organising a social protest,” which could cause repercussions for the Moldova protesters who this month used Facebook and Twitter to organize.

Anonymous blogging and message board posts from the law firm Skadden Arps, the Internet infrastructure giant Cisco and the CEO of Whole Foods have all shown the risks of taking work issues onto the Web, where some say the rules of the workplace should still apply.

The Media Law Resource Center lists abstracts of known U.S. legal cases involving bloggers. The Web site provides court documents and other related links where available, as well as the status of the cases, which date from 1998 to 2009.